[Federal Register Volume 62, Number 45 (Friday, March 7, 1997)]
[Rules and Regulations]
[Pages 10422-10425]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-5660]
[[Page 10422]]
=======================================================================
-----------------------------------------------------------------------
DEPARTMENT OF JUSTICE
Immigration and Naturalization Service
8 CFR Part 214
[INS 1806-96]
RIN 1115-AD74
Processing of Certain H-1A Nurses Under Public Law 104-302
AGENCY: Immigration and Naturalization Service, Justice.
ACTION: Interim rule with request for comments.
-----------------------------------------------------------------------
SUMMARY: This interim rule amends the Immigration and Naturalization
Service's (the Service) regulations by describing the procedures for an
H-1A nurse to obtain an extension of stay based on Public Law 104-302,
``[a]n Act to extend the authorized period of stay within the United
States for certain nurses.'' This is necessary as a response to
concerns that certain geographical locations in the United States
continue to experience a shortage of registered nurses.
DATES: The interim rule is effective March 7, 1997. Written comments
must be submitted on or before May 6, 1997.
ADDRESSES: Please submit written comments, in triplicate to the
Director, Policy Directives and Instructions Branch, Immigration and
Naturalization Service, 425 I Street, NW., Room 5307, Washington, DC
20536. To ensure proper handling, please reference INS number 1806-96
on your correspondence. Comments are available for public inspection at
the above address by calling (202) 514-3048 to arrange for an
appointment.
FOR FURTHER INFORMATION CONTACT:
John W. Brown, Adjudications Officer, Adjudications Division,
Immigration and Naturalization Service, 425 I Street, NW., Room 3214,
Washington, DC 20536, telephone (202) 514-3240.
SUPPLEMENTARY INFORMATION: The H-1A nonimmigrant classification, which
provided for the temporary admission of registered nurses to the United
States, expired on September 1, 1995. However, on October 11, 1996,
Congress enacted Public Law 104-302, ``[a]n Act to extend the
authorized period of stay within the United States for certain
nurses,'' in response to concerns that certain geographic locations in
the United States continue to experience a shortage of registered
nurses. The legislation provides for the granting of an extension of
stay until September 30, 1997, to certain aliens who: (1) entered the
United States as H-1A nurses; (2) were within the United States on or
after September 1, 1995, and who were within the United States on
October 11, 1996; and (3) whose period of authorized stay has expired
or would expire before September 30, 1997, but for the enactment of the
legislation. This rule will amend the Service's regulation at 8 CFR
214.2(h)(15)(ii)(A) to include these requirements.
Public Law 104-302 does not provide for the approval of new H-1A
petitions and relates solely to extensions of stay for certain aliens
who are in, or have previously been accorded, nonimmigrant H-1A status
as registered nurses. This rule amends the description of the H-1A
classification found at 8 CFR 214.2(h)(1)(ii)(A) and removes the
references to the H-1A classification at 8 CFR 214.2(h)(2)(i)(A) and at
8 CFR 214.2(h)(9)(iii)(A) in order to clarify these recently enacted
statutory changes. The definition of an H-1B nonimmigrant alien found
at 8 CFR 214.2(h)(1)(ii)(B) is amended to reflect that registered
nurses are no longer statutorily excluded from the H-1B classification
due to the expiration of the H-1A nonimmigrant classification. The rule
also amends 8 CFR 214.2(h)(2)(i)(D) and 8 CFR 214.2(h)(13)(ii) to
reflect changes affecting employers and travel restrictions,
respectively.
Eligibility
The legislation does not make available the H-1A classification for
registered nurses seeking initial entry into the United States but
merely provides for the extension of stay until September 30, 1997, for
those H-1A nurses who meet the above requirements. Under this
legislation, the Service may not approve an H-1A petition filed on
behalf of an alien who has not previously been accorded H-1A
classification. Since the legislation was designed solely to extend the
H-1A stay of registered nurses affected by the 1995 sunset of the H-1A
classification, an alien must have been employed in H-1A classification
as a registered nurse on September 1, 1995, to obtain the benefits of
the legislation. An alien who was not employed as a registered nurse in
H-1A classification on September 1, 1995, is not eligible for an
extension of temporary stay under this legislation. Further, because
Pub. L. 104-302 deals solely with extensions of H-1A stay, this
provision does not apply to aliens who were previously accorded H-1A
classification and subsequently obtained a different nonimmigrant
classification.
The legislation effectively overrides the regulatory 5-year
limitation of temporary stay previously imposed by the Service on H-1A
registered nurses. Thus, an eligible alien may seek an extension of H-
1A stay regardless of the length of time that he or she was in the
United States in such nonimmigrant classification. The regulation at 8
CFR 214.2(h)(13)(ii) has been amended to reflect this change.
Filing Requirements
This interim regulation requires that an employer seeking the
services of an H-1A registered nurse pursuant to Public Law 104-302
file a Form I-129, Petition for Nonimmigrant Worker, at the appropriate
Service Center to obtain an extension of the alien's stay in the United
States. The purpose of requiring the filing of a petition is to ensure
that a nurse is, in fact, eligible for the benefits of the legislation.
The filing and subsequent approval of the petition will also provide
assurance to the petitioner that the alien's employment will not result
in an employer sanctions violation.
This interim rule amends 8 CFR 214.2(h)(15)(ii)(A) by providing a
list of the evidence which must be submitted with the request for the
extension of the alien's stay in H-1A classification. The interim rule
requires that the employer submit evidence that the alien is licensed
to practice as a registered nurse in the state of intended employment,
that the alien was employed as a registered nurse on September 1, 1995,
that the alien was in the United States on or after September 1, 1995,
and, for an alien who was no longer in status on October 11, 1996, due
to the 1995 sunset of the H-1A classification, that the alien was in
the United States on October 11, 1996. In this regard, because the
intent of Public Law 104-302 was to avoid disruption of much needed
health care services, the Service interprets the requirement that an
alien have been ``within'' the United States on October 11, 1996, to
include H-1A registered nurses who, although not physically present in
the United States on that date, subsequently were readmitted to this
country pursuant to an unexpired H-1A petition.
Affected Groups
The regulation contemplates three separate groups of H-1A nurses
who may be affected by this legislation.
The first group of H-1A nurses is comprise of those nurses who are
currently in a valid nonimmigrant status but whose stay will expire
prior to September 30, 1997. The registered nurses who meet the
statutory requirements will have their H-1A nonimmigrant stay extended
through September 30, 1997, upon the approval of Form I-129, Petition
for
[[Page 10423]]
Nonimmigrant Worker, filed by their employer at the appropriate Service
Center. In accordance with 8 CFR 274a.12(b)(20), such nurses will be
authorized to continue employment with the petitioning employer pending
Service adjudication of the petition.
The second group of H-1A nurses is comprised of those nurses who
were employed in H-1A classification as a registered nurse on September
1, 1995, and whose period of authorized stay in the United States had
expired prior to the effective date of this legislation. Provided they
meet the statutory requirements, the H-1A stay of these nurses shall
also be extended through September 30, 1997, upon the approval of Form
I-129 filed by their United States employer at the appropriate Service
Center. In accordance with 8 CFR 274a.12(b)(20), such nurses will also
be authorized to continue employment with the petitioning employer
pending Service adjudication of the petition.
An otherwise qualified registered nurse in this second group who
was employed in H-1A classification on September 1, 1995, but is no
longer in a valid nonimmigrant status due to the expiration of the H-1A
classification, is eligible for an extension of temporary stay
regardless of whether the alien continued to work as a registered nurse
after September 1, 1995. The petition extension may be filed by any
facility as defined in 8 CFR 214.2(h)(3)(i)(B). Further, an alien
granted an extension of stay under this provision is considered to have
maintained a valid nonimmigrant status through September 30, 1997, for
all purposes under the Immigration and Nationality Act, as amended (the
``INA'').
A third group of H-1A aliens, those whose period of authorized stay
will not expire until after September 30, 1997, are not affected by the
legislation. These H-1A nurses may remain in the United States until
the validity of their petition expires.
This legislation does not affect the status of an alien who was
admitted to the United States as an H-1B nonimmigrant alien to perform
services in the field of professional nursing. Further, this
legislation does not preclude the Service from approving an H-1B
petition filed for a professional nurse, if all regulatory and
statutory provisions relating to the H-1B classification are met.
Change of Employers
Subsection (b) of the statute specifically provides that an H-1A
nurse may not change employers in the United States. The regulation at
8 CFR 214.2(h)(2)(i)(D) has been amended to reflect this restriction.
However, a mere change in employer ownership or a change in work
location with the same employer does not, for the purposes of the H-1A
classification, constitute a change of employers.
Travel Restrictions
The legislation also provides that the extension of the authorized
period of stay for certain nurses does not in any way extend the H-1A
alien's visa. Further, Public Law 104-302 does not authorize the re-
entry of any person who was outside the United States on the date of
enactment and who was not the beneficiary of an unexpired, approved H-
1A petition to obtain the benefits of the legislation. Hence, an alien
who was outside the United States on the date the legislation was
enacted and who previously held H-1A nonimmigrant classification which
has expired is ineligible for H-1A classification. An alien who obtains
an extension of stay based on this legislation and subsequently departs
the United States will be required to obtain appropriate documentation
from the Department of State in order to apply for admission to the
United States in H-1A classification. The regulation at 8 CFR
214.2(h)(13)(ii) has been amended to reflect this change.
Maintenance of Status
An H-1A alien who obtains an extension of stay based on this
legislation is considered to have maintained lawful nonimmigrant status
through September 30, 1997. This provision also applies to the spouse
and child of the H-1A nonimmigrant alien. The regulation at 8 CFR
214.2(h)(15)(ii)(A) has been amended to reflect this change. Upon
approval of the extension, such persons shall be accorded H-4
nonimmigrant status. In addition, a spouse or child granted an
extension of stay under this section of law is considered to have
maintained a valid nonimmigrant status for all purposes under the INA.
This rule also amends the regulation at 8 CFR 214.2(h)(9)(iii) to
reflect a technical change in the title of the Chief of the
Administrative Appeals Unit, Central Office, to the Director of the
Appeals Office, Headquarters.
Good Cause Exception
This interim rule is effective on publication in the Federal
Register, although the Service invites post-promulgation comments and
will address any such comments in a final rule. For the following
reasons, the Service finds that good cause exists for adopting this
rule without the prior notice and comment period ordinarily required by
5 U.S.C. 553. First, the provisions of Public Law 104-302 require that
the Service issue implementing regulations not later than 30 days after
the date that the legislation was enacted. As a result of this
provision, the Service does not have sufficient time to solicit
comments from the public prior to publishing a notice of proposed
rulemaking. Second, the Service notes that this provision is intended
solely to grant a benefit to eligible aliens and the general public.
Regulatory Flexibility Act
The Commissioner of the Immigration and Naturalization Service, in
accordance with the Regulatory Flexibility Act (5 U.S.C. 605(b)), has
reviewed this regulation and, by approving it, certifies that the rule
will not have a significant economic impact on a substantial number of
small entities. This interim rule merely clarifies the requirements for
obtaining an extension of stay under Public Law 104-302.
Unfunded Mandates Reform Act of 1995
This rule will not result in the expenditure by State, local and
tribal governments, in the aggregate, or by the private sector, of $100
million or more in any one year, and it will not significantly or
uniquely affect small governments. Therefore, no actions were deemed
necessary under the provisions of the Unfunded Mandates Reform Act of
1995.
Small Business Regulatory Enforcement Fairness Act of 1996
This rule is not a major rule as defined by section 804 of the
Small Business Regulatory Enforcement Act of 1996. This rule will not
result in an annual effect on the economy of $100 million or more; a
major increase in costs or prices; or significant adverse effects on
competition, employment, investment, productivity, innovation, or on
the ability of United States-based companies to compete with foreign-
based companies in domestic and export markets.
Executive Order 12866
This rule is not considered by the Department of Justice,
Immigration and Naturalization Service, to be a ``significant
regulatory action'' under Executive Order 12866, section 3(f),
Regulatory Planning and Review, and the Office of Management and Budget
has waived its review process under section 6(a)(3)(A).
[[Page 10424]]
Executive Order 12612
The regulation proposed herein will not have substantial direct
effects on the States, on the relationship between the National
Government and the States, or on the distribution of power and
responsibilities among the various levels of government. Therefore, in
accordance with Executive Order 12612, it is determined that this rule
does not have sufficient Federalism implications to warrant the
preparation of a Federalism Assessment.
Executive Order 12988
This interim rule meets the applicable standards set forth in
sections 3(a) and 3(b)(2) of E.O. 12988.
List of Subjects in 8 CFR Part 214
Adminsistrative practice and procedures, Aliens, Employment,
Organization and functions (Government agencies).
Accordingly, part 214 of chapter I of title 8 of the Code of
Federal Regulations is amended as follows:
PART 214--NONIMMIGRANT CLASSES
1. The authority citation for part 214 continues to read as
follows:
Authority: 8 U.S.C. 1101, 1103, 1182, 1184, 1186a, 1187, 1221,
1281, 1282; 8 CFR part 2;
2. Section 214.2 is amended by:
a. Revising paragraphs (h)(1)(ii)(A) and (B) (1);
b. Revising paragraphs (h)(2)(i)(A) and (D);
c. Removing paragraph (h)(9)(iii)(A);
d. Redesignating paragraphs (h)(9)(iii) (B), (C), and (D) as
paragraphs (h)(9)(iii) (A), (B), and (C) respectively;
e. Revising paragraph (h)(13)(ii); and by
f. Revising paragraph (h)(15)(ii)(A); to read as follows:
Sec. 214.2 Special requirements for admission, extension, and
maintenance of status.
* * * * *
(h) * * *
(1) * * *
(ii) Description of classification.
(A) An H-1A classification applies to an alien who is coming
temporarily to the United States to perform services as a registered
nurse, meets the requirements of section 212(m)(1) of the Act, and will
perform services at a facility for which the Secretary of Labor has
determined and certified to the Attorney General that an unexpired
attestation is on file and in effect under section 212(m)(2) of the
Act. This classification expired on September 1, 1995, but certain
aliens previously accorded H-1A classification are eligible to obtain
and extension of stay until September 30, 1997, pursuant to Public Law
104-302.
(B) * * *
(1) To perform services in a specialty occupation (except
agricultural workers, and aliens described in section 101(a)(15) (O)
and (P) of the Act) described in section 214(i)(1) of the Act, that
meets the requirements of section 214(i)(2) of the Act, and for whom
the Secretary of Labor has determined and certified to the Attorney
General that the prospective employer has filed a labor condition
application under section 212(n)(1) of the Act;
* * * * *
(2)Petitions--(i) Filing of petitions--(A) General. A United States
employer seeking to classify an alien as an H-1B, H-2A, H-2B, or H-3
temporary employee shall file a petition on Form I-129, Petition for
Nonimmigrant Worker, only with the Service Center which has
jurisdiction in the area where the alien will perform services, or
receive training, even in emergent situations, except as provided in
this section. Petitions in Guam and the Virgin Islands, and petitions
involving special filing situations as determined by Service
Headquarters, shall be filed with the local Service office or a
designated Service office. The petitioner may submit a legible
photocopy of a document in support of the visa petition in lieu of the
original document. However, the original document shall be submitted if
requested by the Service.
* * * * *
(D) Change of employers. If the alien is in the United States and
seeks to change employers, the prospective new employer must file a
petition on Form I-129 requesting classification and extension of the
alien's stay in the United States. If the new petition is approved, the
extension of stay may be granted for the validity of the approved
petition. The validity of the petition and the alien's extension of
stay shall conform to the limits on the alien's temporary stay that are
prescribed in paragraph (h)(13) of this section. The alien is not
authorized to begin the employment with the new petitioner until the
petition is approved. An H-1A nonimmigrant alien may not change
employers.
* * * * *
(13) * * *
(ii) H-1A limitation on admission. An alien who was previously
accorded H-1A nonimmigrant status, which expired on or before October
11, 1996, may not be admitted to the United States after October 11,
1996, in order to apply for an extension of authorized stay as provided
in Public Law 104-302. Except as provided in paragraph (15)(ii)(A) of
this subsection, and H-1A alien who has spent 5 years in the United
States under section 101(a)(15)(H) of the Act may not change status, or
be readmitted to the United States in any H classification unless the
alien has resided and been physically present outside the United
States, except for brief trips for pleasure or business, for the
immediate prior year.
* * * * *
(15) * * *
(ii) * * *
(A) H-1A extension of stay. An alien who previously entered the
United States pursuant to an H-1A visa may receive an extension of H-1A
temporary stay until September 30, 1997, provided that the alien was
within the United States in valid H-1A classification on or after
September 1, 1995, regardless of whether the alien continued to work as
a registered nurse after September 1, 1995; that the alien's period of
H-1A temporary stay has expired or would expire before September 30,
1997; and, if the alien was not in valid H-1A nonimmigrant status on
October 11, 1996, that the alien was within the United States on
October 11, 1996. An extension of stay may not be granted to an H-1A
nonimmigrant alien beyond September 30, 1997. An H-1A alien granted an
extension of stay, and the spouse and child of such nonimmigrant, shall
be considered to have maintained nonimmigrant status through September
30, 1997, for all purposes under the Immigration and Nationality Act,
as amended. Public Law 104-302 does not apply to an H-1A alien who
otherwise failed to maintain his or her valid H-1A nonimmigrant status
or has changed from H-1A to another nonimmigrant status. A request for
an extension of stay for an H-1A nonimmigrant must be filed on Form I-
129, Petition for Nonimmigrant Worker, at the appropriate Service
Center with the following:
(1) Evidence that the alien was employed as a registered nurse on
September 1, 1995:
(2) Evidence that the beneficiary is licensed to practice as a
registered nurse in the state of intended employment;
(3) Evidence that the alien was within the United States on or
after September 1, 1995. For purposes of this provision, an alien will
be deemed to have been within the United States on September 1, 1995,
who, although not physically present in the United States on that date,
was subsequently admitted to the United States in H-1A classification
pursuant to an unexpired H-1A visa; and
[[Page 10425]]
(4) If the alien was not in valid H-1A nonimmigrant status on
October 11, 1996, evidence that the alien was within the United States
on October 11, 1996. For purposes of this provision, an alien will be
deemed to have been within the United States on October 11, 1996, who,
although not physically present in the United States on that date, was
subsequently admitted to the United States in H-1A classification
pursuant to an unexpired H-1A visa.
* * * * *
Sec. 214.2 [Amended]
3. In Sec. 214.2, newly redesignated paragraph
(h)(9)(iii)(B)(2)(ii) is amended in the second sentence by revising the
phrase ``Chief of the Administrative Appeals Unit, Central Office'' to
read: ``Director, Administrative Appeals Office, Headquarters''.
Dated: February 28, 1997.
Doris Meissner,
Commissioner, Immigration and Naturalization Service.
[FR Doc. 97-5660 Filed 3-6-97; 8:45 am]
BILLING CODE 6560-50-M
